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15 August 2000
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Subcommission on the Promotion
and Protection of Human Rights
52nd session
15 August 2000
Morning
The Subcommission on the Promotion and Protection of Human Rights this morning began its consideration of human rights and the administration of justice. The debate focused on the question of human rights and states of emergency, the application of international standards concerning the human rights of detained juveniles, gross and massive violations of human rights as an international crime, juvenile justice, the privatization of prisons, and the individualization of prosecution and penalties, and repercussions of violations of human rights on families.
Subcommission Expert Yozo Yokota presented the report of the working group on the administration of justice, saying the most salient points of the discussion had been on the death penalty; summary, arbitrary and extrajudicial executions, which were rampant particularly in armed conflict areas; privatization of prisons; and the improvement and efficiency of the judicial instruments for the protection of human rights at the national level and their impact at the international level. Two new items had been added to the work of the working group: the administration of justice through military tribunals and the domestic implementation of the obligation to provide effective remedies.
Experts contributing to the discussion were El-Hadji Guisse, Paulo Sergio Pinheiro, Jane Francoise Hampson and David Weissbrodt. They focused mainly on the need for an independent and transparant judiciary, the problem of impunity and how bringing human rights offenders to trial was a prerequisite for the promotion and protection of human rights.
The following non-governmental organizations addressed the meeting: the World Organization against Torture, War Resisters International, the International Confederation of Free Trade Unions, the Minority Rights Group, the African Commission of Health and Human Rights Promoters, North-South XXI, Liberation, the American Association of Jurists, the International Movement against All Forms of Discrimination and Racism, the International Association of Democratic Lawyers, the International Institute for Peace, Association pour la Promotion de l'Emploi et du Logement, the International Federation of Human Rights Leagues, the Association for World Citizens, the European Union of Public Relations, the World Muslim Congress, the International League for the Rights and Liberation of Peoples, Pax Romana and the International Human Rights Association of American Minorities.
The Subcommission will reconvene at 3 p.m. to continue its consideration of the administration of justice and human rights. It is expected to conclude its discussion on this item and to take up the issue of the freedom of movement this afternoon.
Administration of justice and human rights
Under this agenda item, the Subcommission has before it a report of its working group on the administration of justice (E/CN.4/Sub.2/2000/CRP.3), which summarizes activities on issues related to the deprivation of the right to life, with special reference to imposition of the death penalty -- including consideration of a report by Subcommission Expert El-Hagji Guisse; summary, arbitrary and extrajudicial executions; privatization of prisons -- including consideration of an updated report by Subcommission Expert Miguel Alfonso Martinez; improvement and efficiency of judicial instruments for protection of human rights at the national level and their impact at the international level -- including consideration of a report by Expert Hector Fix-Zamudio on "various judicial and procedural instruments for the protection of human rights in the domestic sphere"; administration of justice through military tribunals and other exceptional jurisdictions; and the domestic implementation in practice of the obligation to provide effective domestic remedies -- a topic on which Expert Francoise Jane Hampson has agreed to produce a working paper.
Statements
ELSA LE PENNEC, of the World Organization against Torture, said there was an ongoing state of emergency in southern parts of Turkey since 1987; most serious violations of human rights there had been caused by security forces. The state of emergency's prolonged continuation was an anomaly; states of emergency should be temporary. Too many prosecutions had been started against human-rights offenders under it, based on charges of supporting suppressed organizations or subversive activities. A human-rights office in the region had been closed. The Subcommission should stress to Turkey that it should stop prosecuting defenders of human rights -- that this was a violation of standards of free expression and association, and against standards for protection of human-rights defenders. Supposedly Turkey had recently changed detention procedures under the state of emergency, but there was no apparent change on the ground -- detainees' relatives, for example, were rarely notified, and allegations of torture continued to be lodged. Unwarranted arrests continued, including the recent arrests of three mayors, who claimed that they were tortured.
Concern was also felt over situations in the Indonesian archipelago, especially the Moluccas.
MICHEL MONOD, of the War Resisters International, said that the organization had conducted a thorough study in all countries on conscription and conscientious objection to military service. In many countries draft evaders and deserters were not treated in accordance with the human rights treaties and were punished far beyond the recommendations of the Subcommission. In poor countries young men enlisted in order to earn some meagre living but most of the time young men were forced to join the army against their will. In some countries children under eighteen years of age
were enlisted in contradiction to the optional protocol to the Convention on the Right of the Child and against the will of their parents. This happened mostly in Eastern European Countries, Asian Republics and in Central and Latin America.
The organization demanded that draft evaders and deserters benefit from resolution 1998/77 of the Commission on Human Rights in favour of conscientious objectors.
ANNA BOINDI BIRD, of the International Confederation of Free Trade Unions, said trade unions were increasingly a stabilizing force in countries where law and order had broken down. Unions in Zimbabwe had shut down the country's factories, farms and businesses on 2 August; over 80 per cent of Zimbabwe's workers showed support; the shutdown was a bid to force the Government to re-establish the rule of law following weeks of mob violence without Government attempts to stop the beatings, looting and corruption. Robert Mugabe had remained silent and had refused to act.
In Fiji, the trade union congress had been in the forefront of the fight for the return to democracy and the 1997 Constitution after the May 19 coup and hostage-taking put an end to the legitimately elected Government. During the past two months, trade unions had worked closely with other civic groups to push for a return to the rule of law after the rebels, led by George Speight, had taken over the country. On 2 August, a coalition from civil society, with strong union support, held a National Action Day in support of democracy and a Constitutional government. Eight trade unionists were held hostage and the trade union's General Secretary was threatened by thugs who invaded union offices. The Subcommission should monitor the situations in Zimbabwe and Fiji.
MARGOT SALOMON, of the Minority Rights Group, welcomed the release on bail of Professor Saad Eddin Ibrahim, distinguished scholar and minority rights defender. Several of his colleagues had been arrested and detained and the Ibn Khaldoun Centre had been forcibly closed. These measures were reportedly under emergency provisions that had been in place in Egypt since 1981. No formal charges had been pressed to date. The arrests and detention were linked to the activities by the Centre on the parliamentary elections, due to be held in November. The consequences of these events were deeply alarming for the democratic debate in the run up to the parliamentary elections. Further concerns about freedom of expression and restraints on the work of civil society and human rights defenders were raised.
The organization recommended that the United Nations requests the Egyptian authorities to clarify whether people were still detained and to re-open the Ibn Khaldoun Centre; that the Human Rights Committee continue to monitor the human rights situation in Egypt during the parliamentary elections; and that experts, governments, non-governmental organizations and donor agencies monitor the situation in Egypt, including the possible failure to observe international human rights law and restrictions on civil society and democratic institutions.
KASHINATH PANDITA, of the African Commission of Health and Human Rights Promoters, said international terrorism had taken tens of thousands of innocent lives and had forced millions of people to flee their homes and regions. Drug trafficking had given rise to dreadful Mafias who had international connections and had strong clout with the ruling apparatus of some States and so escaped punishment for their crimes. Rich as they were, they purchased arms and provided substantial funds to those who caused insurgencies or waged proxy wars against neighbouring States. Small-arms proliferation also was a serious problem. When such arms were supplied clandestinely, the purpose of the entrepreneurs involved was to intimidate the population, disrupt peace and tranquillity, and force Governments into difficult situations. West African countries had put a moratorium on small-arms proliferation, but in South Asia insurgent groups had acquired large quantities of arms and were spreading them among volunteers and mercenaries.
A mechanism was needed by which such international crimes could be stamped out. The time had come when member States needed to accept their responsibility for uprooting these menaces in the larger interests of the world community.
GULNAR WAKIM, of North-South XXI, said that the lifting of the immunity of General Pinochet in Chile was a victory for human rights, a victory for the victims and a victory for the people of the South. The discussion on mechanisms of human rights often did not cover the inequality of the power of States, even though this inequality was at the core of the debate and the source of a new form of impunity benefiting dictators and corrupt businessmen. These new economic dictators were violating the economic, social and cultural rights of people every day. The globalization of transnational economic transactions had high costs in developing countries. These social criminals were ensured that their impunity would not be affected. There were inadequate mechanism to bring these people to justice and it was a paradox to discuss a good administration of justice without speaking of the mechanisms of bringing these new dictators to justice.
EL-HADJI GUISSE, Subcommission Expert, said there was a tremendous hole into which democratic principles and human-rights protections fell in some States. The rule of law, equal protection before the law, and other standards did not, in the end, apply in these States. There might be token acceptance of such standards, but often the judiciary was weak, was not independent, or was not sufficiently supported or financed. The result was that justice was distorted. Often the separation of powers was not observed. In some countries political powers controlled the judiciary completely -- judges were totally dependent agents of ruling regimes; they were vassals. The entire careers of judges were completely controlled; hence they could not be independent; they had to accept what happened -- and a lot of dirty business occurred; promotions came not from tough and fair application of justice but from pleasing the boss. Nepotism could also play a role, and bribery. The result was arbitrary arrests, unjust convictions, improper conditions of detention, and improper application of the death penalty.
A very great country, the United States, had become a master at carrying out the death penalty, in a large number of cases against African-Americans, many of whom were under 18 when they committed their supposed crimes. The death penalty was carried out in other countries, too, although there was a laudable trend in many regions, such as Europe, away from capital punishment.
To see the extent of corruption, one had only to look at the incredible number of corruption cases where no punishment had resulted. There also was fiscal fraud and customs fraud.
Among possible ways of making progress would be establishing "universal competence" for international crimes -- meaning they could be tried anywhere; for that, a framework would have to be constructed involving all States; the point would be to combat impunity, although such an approach, if twisted, might perpetuate impunity. The International Criminal Court and the various international tribunals, as for Bosnia and Rwanda, had been set up; their jurisdictions supplemented but did not conflict with national jurisdictions, and they were based on the principle that international crimes did not lapse. Perhaps international unions of judges and magistrates, set up with the help of the International Labour Office, might serve as a way of protecting judicial standards and independence.
PAULO SERGIO PINHEIRO, Subcommission Expert, was concerned about the situation of the administration of justice in Indonesia. The Commission of Inquiry for East Timor as well as the Security Council had stated that there was an urgent need to bring the perpetrators to justice as soon as possible. Unfortunately, it seemed that international standards of justice would not prevail in Indonesia for a considerable time. A recent re-shuffle of the military had resulted in the return to power of hard liners. Reform was required to ensure an independent judiciary and the promotion of justice and human rights. Indonesia's efforts to bring military leaders to justice had not been satisfactory as military judges had been used, and the commanding officers had remained untouched. This was a step in the wrong direction and it was setting a dangerous precedent. Indonesia had to bring its justice system up to the international standards.
JASDEV SINGH RAI, of Liberation, said Indonesia had not done a satisfactory job in bringing political and military leaders responsible for political violence to justice; the Government was failing to fulfil its commitment to combat impunity made to last year's Subcommission; the wrong steps were being taken in Aceh and it was clear that only an independent international tribunal could provide justice for peace, reconciliation and stability in East Timor. Administration of justice in Yemen had failed to provide redress for serious human-rights violations, and the Subcommission should call on the Yemeni Government to start a dialogue with the National Opposition Front. In India, the much-criticized Terrorist and Disruptive Areas Act, which resulted in some 75,000 detentions, and which had been allowed to lapse, was being reinstated; a similar Act existed in Sri Lanka, resulting in such abuses as extra-judicial executions, torture, and rape. There were serious violations of the rights of Sikh activists in India at the hands of police, while some of the activities of the armed forces in Kashmir amounted to crimes against humanity.
There should be a Special Rapporteur on South Asia, as there were also problems of justice in such countries as Malaysia and in Australia. In Australia, indigenous peoples were denied sufficient legal status and resource ownership.
JAIRO SANCHEZ, of the America Association of Jurists, welcomed the decision by Chile to lift the immunity of General Pinochet. It was also pleased at the swiftness with which Argentina had acted to prevent the impunity of those responsible for kidnapping incidents. Former military heads were being detained. This proved that sometimes the fight against impunity was more observed in developing countries than in the so-called superpowers, such as the decision not to open an investigation on the actions of the North Atlantic Treaty Organization in the former Yugoslavia which ignored the systematic violations of human rights law. It was important to note that United States authorities required international criminal courts in all areas where they were themselves not involved. The independence of the tribunal for Yugoslavia was fiction as the judges obeyed the power that had appointed them. This rigid system took away any initiative of the judges and confirmed that the superpowers already had a mechanism, which they chose not to use according to international standards of human rights law.
GIANFRANCO FATTORINI, of the Movement against Racism and for Friendship Among Peoples, said fair administration of justice was vital for human rights. There were many problems around the world, such as convictions for persons expressing their rights to free expression and the totally unjustified phenomenon of the death penalty. The situation in Turkey was a matter of concern; the official attitude of the Turkish authorities had not changed; a few weeks ago, the president of a legal political party had been sentenced to one year imprisonment for unacceptable propaganda. There were a number of other distressing convictions in Turkey.
Another situation of concern was in Morocco, although over the last year there had been great improvement in the situation under the new king. Still, at a trial recently, three persons had been sentenced to up to four years in prison for breaches of State security; their expressed opinions had not in fact been criminal. There needed to be a true climate of freedom of expression, where demonstrators could carry out their activities, and where, if they were summoned to court, they were allowed to have legal representation. And many cases of disappeared persons still had to be resolved. Also, long-time Moroccan prisoner of conscience Mohamed Daddache should be freed.
JANE FRANCOISE HAMPSON, Subcommission Expert, said that international human rights mechanisms were, and should be, subsidiary. The primary obligation of States was to protect and enforce human rights through the domestic legal order. If the State provided effective domestic remedies, it was much less likely that violations would become widespread and systematic. It also made it much less likely that a country would become a target of international concern. The provision of effective domestic remedies therefore offered a considerable incentive to States. The problem therefore appeared to be one involving the practical implementation of the obligation to provide a domestic remedy. Impunity had both an internal and external dimension. The internal dimension had been discussed. The other problem concerned those allegedly responsible for gross and systematic violations of human rights, crimes against humanity or war crimes, who sought to find refuge in other States.
Ms. Hampson focused on the failures of the Government of Turkey in the south-east of the country to illustrate internal failures, such as: the inadequacy of public prosecutors to question members of the security forces and to verify documentary materials; the failure by the police or security to record evidence or make reports; the failure of public prosecutors to react to visible signs of ill-treatment; inadequate forensic medical examination of detainees and a defential or blinkered attitude by the public prosecutors towards members of the security forces. With regard to the international aspect, Ms. Hampson used the example of a mujahadeen commander known as Zardad who was alleged to have committed serious war crimes and had entered another country where he lived under an assumed name. All States whose courts did not enforce criminal law on the basis of universal jurisdiction were urged to pass the necessary legislation to enable the prosecution of persons alleged to have committed war crimes on the basis of universal jurisdiction.
PELPINA SAHUREKA, of the International Association of Democratic Lawyers, said that in the Moluccas, the Indonesian armed forces were waging a full-scale war against the Moluccan people, and more than 40,000 Moluccans had been killed. There was arbitrary detention, torture in police custody, disappearances, and extra-judicial executions; a recently imposed state of emergency simply allowed the armed forces and some 30,000 armed mercenaries -- the so-called Laskar Jihad -- to commit atrocities more easily.
There should be an international fact-finding mission to the Moluccas; there should be visits by Special Rapporteurs on torture and on arbitrary executions; there should be prosecution and punishment of political and military leaders responsible for these gross human-rights violations; there should be immediate withdrawal of the Indonesian army and its mercenaries from the south Moluccas; and there should be immediate humanitarian aid from international organizations.
YOZO YOKOTA, Subcommission Expert, presented the report of the working group on the administration of justice. The working group had worked under time constraints and yet had managed to achieve a great deal. One of the most salient points of the discussion had been the in-depth debate on the death penalty where it was noted that there were positive trends in the direction of the abolition of the death penalty. It was also cautioned that in some States, executions had increased, creating a negative trend. Secondly, the Working Group had discussed the subject of summary, arbitrary and extrajudicial executions. These practices were rampant particularly in armed conflict areas. It had been stressed that the parties to conflicts should respect international human rights law and that developed countries should stop providing weapons to armed bands engaging in such practices. Third, on the question of privatization of prisons, the working group cautioned that this practice was not limited to one country, where private companies operated the entire administration of prisons. Fourth, the improvement and efficiency of the judicial instruments for the protection of human rights at the national level and their impact at the international level had been discussed. It was stressed that there were three constitutive elements of instruments specifically created to protect fundamental rights, namely rapid proceedings, precautionary measures and fundamental restitutive measures.
Two new items had been added, the administration of justice through military tribunals and other exceptional jurisdiction where the compatibility of military tribunals and international standards were analysed. The second new item was the domestic implementation in practice of the obligation to provide effective remedies.
OLGA NAKOJO, of the International Movement against All Forms of Discrimination and Racism, said the "Sayama" case in Japan was a good illustration of lack of a fair trial. The defendant, Kazuo Ishikawa, was a member of the Burakumin minority group, and was originally sentenced to death, and in a second trial to life imprisonment, and had served 32 years in prison before being released on parole. He was now seeking a retrial, claiming his innocence. There was admission that the prosecutor in charge of the case had kept evidence from the defence, and that evidence was still unavailable to Mr. Ishikawa. The Tokyo High Court had made a decision to dismiss the claim for a new trial. The Japanese judicial system was undergoing re-examination and reform, having been increasingly attacked for being dissociated from ordinary citizens. The UN Human Rights Committee had recommended guarantees of disclosure of evidence and human-rights education for judges, but these steps had not been realized or implemented.
There was long-standing discrimination in the Japanese justice system. Minorities were often automatic suspects, meaning police investigated them and discriminatorily expected them to be guilty. Eradication of such discrimination was essential for a fair trial.
PANKAJ BHAN, of the International Institute for Peace, said that the topic under discussion was multi-faceted and wide in its scope and implications. The agents for denial of justice and human rights were the States and also some of the non-State actors who had emerged on the scene during the last few years. The denial of justice on the part of the States was manifested in two ways. First, the targeting of individuals, which could be generated by personal vendettas or by the desire to silence critics, opposition leaders or human rights activists. Second, denial of justice on a mass scale encompassing whole communities by the State. The Mohajirs in Pakistan were a good example of this practice. Since 1992, more than 15,000 Mohajirs had been extra-judicially executed and thousands had been maimed for life. It seemed that the State of Pakistan had ceased to administer justice to political opponents, democrats, human rights activists and also to entire communities demanding not secession but only autonomy under a united federal dispensation. This problem, along with the denial of a visa extension to the son of former Prime Minister Nawaz Sharif, were issues that the Subcommission was encouraged to act upon, so that recalcitrant States like Pakistan halted their human rights violations.
MOHAMMAD MUMTAZ KHAN, of the Association for the Promotion of Employment and Housing, said for some years the organization had protested the situation in the northern areas and Pakistan-occupied Kashmir, but conditions had not improved and in fact were getting worse. Unlike India, Pakistan could not claim foreign militancy as a reason for denying fundamental rights in these territories; yet violations were widespread, not limited to any particular group, and had gone on for 52 years. In fact the entire Pakistani population had been facing violations since the military had suspended the Constitution and imposed a state of emergency.
The northern areas had been under a state of emergency for a long time; the region was officially a disputed territory and part of Kashmir, but Pakistan had detached and isolated it. There was no access to justice for residents, no right to appeal, and decisions by Pakistan's own Supreme Court for restoration of fundamental rights there had not been complied with by the Government. Political activists faced treason charges and political opponents were victimized. The Subcommission should take notice of this situation.
VO VAN AI, of the International Federation of Human Rights League, was expressing concern over recent attacks by the Egyptian State on the civil society of Egypt. The arrest of the Saad El-Din Ibrahim and the shut -down of the Ibn Khaldoun Centre were cited as clear examples of the recent attempts of the Egyptian State to destroy Egypt's civil society and to limit political opposition. The repression had been clearly revealed during the last parliamentary elections, where the democracy of the State had been seriously threatened. The organization also deplored the control exercised by the political institution over the Peruvian judiciary. Court activities could no longer guarantee the independence or transparency of decisions or actions. Prison sentences were being extended beyond reason. The Federation also condemned the Peruvian decision not to take part in the inter-American human rights process; this was a clear regression for the promotion of human rights.
The Federation also raised problems concerning the administration of justice in Northern Ireland and in Viet Nam. In light of these gross and systematic violations of human rights, the Subcommission was urged to encourage States to respect the recommendations of the special rapporteurs on religious intolerance and the freedom of opinion.
DAVID LITTMAN, of the Association for World Education, said Egypt had been shackled by state of emergency legislation since 1981. On 30 June, police had arrested Saad El-Din Ibrahim, the founder and director of the Ibn Khaldoun Centre for Social and Development Studies and a leading human-rights defender -- there was no official charge, just for "investigation". Several staff members of the Centre also were arrested, documents and computers were confiscated, the centre was closed down, and another nearby group which
encouraged participation of women in elections was also closed. Following condemnation by Amnesty International of Egyptian muzzling of human-rights defenders and intense pressure from diverse sources, Mr. Ibrahim was released on bail on 10 August, still uncharged.
He was accused at various times in the past in a smear campaign by the Government-controlled media of receiving money from foreign sources to tarnish Egypt's image; was disliked for having concluded that Egypt's 1995 parliamentary elections were rigged; for having tried to establish a system to monitor forthcoming elections and to foster participation in the elections; for supporting the Copt minority; and for holding a conference in May on "Minorities in the Arab World". The Subcommission should raise its voice in every case where human-rights defenders were threatened by arbitrary detention.
SARDAR SHAUKAT ALI KASHMIRI, of the European Union of Public Relations, said that he had had to seek asylum in Switzerland on account of extreme persecution which he had personally endured. He had suffered solitary confinement and considerable mental torture. Despite his fervent appeal to the judiciary, he was kept under unlawful detention, not knowing whether he would come out of it dead or alive. It was unfortunate that some States were overtly or covertly abetting such violations of human rights, which constituted international crimes. These Governments did so with the sole purpose of achieving their political goals. The Subcommission was informed that Pakistan was a State where organizations and institutions paid scant attention to the protection of the rights of the people. Religious seminars had been set up and a variety of religious organizations had become the breeding ground for fanatics. Not only were the northern areas of Jammu and Kashmir under oppression and suppression, but the entire State was affected. The Subcommission should exercise its influence to persuade Pakistan to stop trans-border terrorism, drug-trafficking and proliferation of small arms so that the region was given a chance to stability and peace.
SARDAR TAHIR AZIZ, of the World Muslim Congress, said innumerable acts of torture, arbitrary detentions, summary executions, and extrajudicial killings committed by 700,000 Indian security forces in the disputed territory of Jammu and Kashmir amounted to one of the worst situations of impunity. Impunity had become a way of life in Kashmir, and the Indian Government did nothing to end it and in fact was committed to the imposition of a military solution in Kashmir. Although India had signed the Convention against Torture in 1997, impunity in its laws was a major contributor to cases of torture -- members of the armed forces were practically immune from prosecution under domestic legislation. Recently the Government had proposed new anti-terrorist legislation that would be a replication of the notorious TADA provisions.
The Subcommission should ask the Government of India to explain its position on the various laws enforced in Kashmir; should express its serious concerns over the proposed anti-terrorist bill; and should offer India technical assistance to bring its laws into conformity with the country's international obligations.
JULEN ARZUAGA, of the International League for the Rights and Liberation of Peoples, said that States must punish those in violation of human rights. Any amnesty clauses attempting to free offenders contradicted international human rights law. Those responsible for these crimes had to be tried by a normal court and not by military tribunals. The recent refusal to give General Pinochet impunity was an encouraging improvement, however, many laws still needed to be reformed before Chile's legal system was consistent with international law. In El Salvador, inconsistent laws still existed, the persistence of amnesty laws was the main principle on which impunity rested. Therefore, the Subcommission had to ensure that these inconsistent laws were revoked in order to achieve a real independent and transparent judiciary. In Turkey, trials against torture offenders were rare. There were difficulties in obtaining medical and forensic evidence and arbitrary legal obstruction during trials was commonplace.
DAVID WEISSBRODT, Subcommission Expert, said the Subcommission had before it a draft resolution calling on the Commission on Human Rights to give priority consideration to the draft convention the Subcommission had developed on the protection of all persons from enforced disappearances; the Commission had not devoted adequate time to the draft convention, and he hoped the Subcommission would adopt the draft resolution by consensus.
He wished to express concern about the reported disappearance of Jafa Siddiq Hamzah, Chairperson of the International Forum of Aceh, from the city of Medan, while on a human-rights mission to Aceh. He urged the Government of Indonesia to investigate fully this reported disappearance.
Detention of asylum seekers was routinely used in a number of States, particularly in North America and Western Europe, and such detention often lasted indefinitely. These policies could inhibit persons from lodging or pursuing their asylum claims, or induce them to abandon them; conditions of detention were often extremely poor; critics of these practices maintained that the detention policies could actually be designed to discourage asylum seekers from seeking refuge in certain countries.
The standards relating to detention of asylum seekers adopted by the United Nations High Commissioner for Refugees (UNHCR) in 1999 were useful and appropriate and if properly applied could significantly improve the situation. Such detentions also implicated a number of human rights standards, such as those in the 1951 Convention Relating to the Status of Refugees; the International Covenant of Civil and Political Rights; the UN Body of Principles for the protection of all persons under any form or detention or imprisonment, and the Convention against Torture.
Under UNHCR standards, detention of asylum seekers should only be used in exceptional and strictly limited circumstances, on a case-by-case basis, and under humane conditions. A number of States did not follow this policy. Alternatives to detention were available and should be considered by these States, and such States should make a good-faith effort to avoid detaining vulnerable persons such as children, torture victims, the elderly and the disabled.
MARIA-JOSEP PARES, of Pax Romana, speaking on behalf of the International Young Catholic Students and Centre-Europe-Tiers Monde, said there were clear and dangerous irregularities in the judicial system of Colombia. These concerns had long been a problem in Colombia, however, the organizations brought this issue to the attention of the Subcommission regarding the disappearance of Alirio Pedraza Becerra, a famous human rights activists. The investigation into his disappearance had been carried out in a highly irregular and unprofessional manner, and no one had been charged for the crime. There were distortions of the truth in the investigation regarding the incidents surrounding this case. This was a situation which endangered all human rights activists in Colombia. The organizations were concerned that there was a perpetuation in human rights violations in Colombia with total impunity. In addition, there was a fear for other human rights activists who were living in extremely unsafe situations. The Subcommission should not allow States to carry out this kind of oppression of human rights activists. The Subcommission was urged to guarantee the rights and integrity of human rights defenders and the Government of Colombia was called upon to reform the nature of its legal system and to end the threats against human rights activists.
RONALD BARNES, of the International Human Rights Association of American Minorities, said the Subcommission should study judicial decisions affecting every aspect of the human rights of indigenous peoples. The United States Government had recognized traditional indigenous Governments under President Monroe in 1821, but now denied such recognition at all hierarchical levels of the U.S. courts. This was discrimination. Indigenous peoples needed recognition of their sovereign rights and must have equality in the administration of justice in territories involving their traditional lands so that they could properly exercise their right to self-determination. Similarly, the intersessional working group for the elaboration of a draft declaration on the rights of indigenous peoples disregarded the sovereign equality of the indigenous peoples of Hawaii and Alaska. Colonized indigenous peoples should be notified whenever the colonizing Governments discussed any topic related to their situation, such as in the territory of Alaska.
The Subcommission should pass a resolution to examine the situation in Alaska, and a special rapporteur should investigate the juridical history and continuing discrimination against the indigenous peoples of Alaska by the United States.
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and Protection of Human Rights
52nd session
15 August 2000
Morning
The Subcommission on the Promotion and Protection of Human Rights this morning began its consideration of human rights and the administration of justice. The debate focused on the question of human rights and states of emergency, the application of international standards concerning the human rights of detained juveniles, gross and massive violations of human rights as an international crime, juvenile justice, the privatization of prisons, and the individualization of prosecution and penalties, and repercussions of violations of human rights on families.
Subcommission Expert Yozo Yokota presented the report of the working group on the administration of justice, saying the most salient points of the discussion had been on the death penalty; summary, arbitrary and extrajudicial executions, which were rampant particularly in armed conflict areas; privatization of prisons; and the improvement and efficiency of the judicial instruments for the protection of human rights at the national level and their impact at the international level. Two new items had been added to the work of the working group: the administration of justice through military tribunals and the domestic implementation of the obligation to provide effective remedies.
Experts contributing to the discussion were El-Hadji Guisse, Paulo Sergio Pinheiro, Jane Francoise Hampson and David Weissbrodt. They focused mainly on the need for an independent and transparant judiciary, the problem of impunity and how bringing human rights offenders to trial was a prerequisite for the promotion and protection of human rights.
The following non-governmental organizations addressed the meeting: the World Organization against Torture, War Resisters International, the International Confederation of Free Trade Unions, the Minority Rights Group, the African Commission of Health and Human Rights Promoters, North-South XXI, Liberation, the American Association of Jurists, the International Movement against All Forms of Discrimination and Racism, the International Association of Democratic Lawyers, the International Institute for Peace, Association pour la Promotion de l'Emploi et du Logement, the International Federation of Human Rights Leagues, the Association for World Citizens, the European Union of Public Relations, the World Muslim Congress, the International League for the Rights and Liberation of Peoples, Pax Romana and the International Human Rights Association of American Minorities.
The Subcommission will reconvene at 3 p.m. to continue its consideration of the administration of justice and human rights. It is expected to conclude its discussion on this item and to take up the issue of the freedom of movement this afternoon.
Administration of justice and human rights
Under this agenda item, the Subcommission has before it a report of its working group on the administration of justice (E/CN.4/Sub.2/2000/CRP.3), which summarizes activities on issues related to the deprivation of the right to life, with special reference to imposition of the death penalty -- including consideration of a report by Subcommission Expert El-Hagji Guisse; summary, arbitrary and extrajudicial executions; privatization of prisons -- including consideration of an updated report by Subcommission Expert Miguel Alfonso Martinez; improvement and efficiency of judicial instruments for protection of human rights at the national level and their impact at the international level -- including consideration of a report by Expert Hector Fix-Zamudio on "various judicial and procedural instruments for the protection of human rights in the domestic sphere"; administration of justice through military tribunals and other exceptional jurisdictions; and the domestic implementation in practice of the obligation to provide effective domestic remedies -- a topic on which Expert Francoise Jane Hampson has agreed to produce a working paper.
Statements
ELSA LE PENNEC, of the World Organization against Torture, said there was an ongoing state of emergency in southern parts of Turkey since 1987; most serious violations of human rights there had been caused by security forces. The state of emergency's prolonged continuation was an anomaly; states of emergency should be temporary. Too many prosecutions had been started against human-rights offenders under it, based on charges of supporting suppressed organizations or subversive activities. A human-rights office in the region had been closed. The Subcommission should stress to Turkey that it should stop prosecuting defenders of human rights -- that this was a violation of standards of free expression and association, and against standards for protection of human-rights defenders. Supposedly Turkey had recently changed detention procedures under the state of emergency, but there was no apparent change on the ground -- detainees' relatives, for example, were rarely notified, and allegations of torture continued to be lodged. Unwarranted arrests continued, including the recent arrests of three mayors, who claimed that they were tortured.
Concern was also felt over situations in the Indonesian archipelago, especially the Moluccas.
MICHEL MONOD, of the War Resisters International, said that the organization had conducted a thorough study in all countries on conscription and conscientious objection to military service. In many countries draft evaders and deserters were not treated in accordance with the human rights treaties and were punished far beyond the recommendations of the Subcommission. In poor countries young men enlisted in order to earn some meagre living but most of the time young men were forced to join the army against their will. In some countries children under eighteen years of age
were enlisted in contradiction to the optional protocol to the Convention on the Right of the Child and against the will of their parents. This happened mostly in Eastern European Countries, Asian Republics and in Central and Latin America.
The organization demanded that draft evaders and deserters benefit from resolution 1998/77 of the Commission on Human Rights in favour of conscientious objectors.
ANNA BOINDI BIRD, of the International Confederation of Free Trade Unions, said trade unions were increasingly a stabilizing force in countries where law and order had broken down. Unions in Zimbabwe had shut down the country's factories, farms and businesses on 2 August; over 80 per cent of Zimbabwe's workers showed support; the shutdown was a bid to force the Government to re-establish the rule of law following weeks of mob violence without Government attempts to stop the beatings, looting and corruption. Robert Mugabe had remained silent and had refused to act.
In Fiji, the trade union congress had been in the forefront of the fight for the return to democracy and the 1997 Constitution after the May 19 coup and hostage-taking put an end to the legitimately elected Government. During the past two months, trade unions had worked closely with other civic groups to push for a return to the rule of law after the rebels, led by George Speight, had taken over the country. On 2 August, a coalition from civil society, with strong union support, held a National Action Day in support of democracy and a Constitutional government. Eight trade unionists were held hostage and the trade union's General Secretary was threatened by thugs who invaded union offices. The Subcommission should monitor the situations in Zimbabwe and Fiji.
MARGOT SALOMON, of the Minority Rights Group, welcomed the release on bail of Professor Saad Eddin Ibrahim, distinguished scholar and minority rights defender. Several of his colleagues had been arrested and detained and the Ibn Khaldoun Centre had been forcibly closed. These measures were reportedly under emergency provisions that had been in place in Egypt since 1981. No formal charges had been pressed to date. The arrests and detention were linked to the activities by the Centre on the parliamentary elections, due to be held in November. The consequences of these events were deeply alarming for the democratic debate in the run up to the parliamentary elections. Further concerns about freedom of expression and restraints on the work of civil society and human rights defenders were raised.
The organization recommended that the United Nations requests the Egyptian authorities to clarify whether people were still detained and to re-open the Ibn Khaldoun Centre; that the Human Rights Committee continue to monitor the human rights situation in Egypt during the parliamentary elections; and that experts, governments, non-governmental organizations and donor agencies monitor the situation in Egypt, including the possible failure to observe international human rights law and restrictions on civil society and democratic institutions.
KASHINATH PANDITA, of the African Commission of Health and Human Rights Promoters, said international terrorism had taken tens of thousands of innocent lives and had forced millions of people to flee their homes and regions. Drug trafficking had given rise to dreadful Mafias who had international connections and had strong clout with the ruling apparatus of some States and so escaped punishment for their crimes. Rich as they were, they purchased arms and provided substantial funds to those who caused insurgencies or waged proxy wars against neighbouring States. Small-arms proliferation also was a serious problem. When such arms were supplied clandestinely, the purpose of the entrepreneurs involved was to intimidate the population, disrupt peace and tranquillity, and force Governments into difficult situations. West African countries had put a moratorium on small-arms proliferation, but in South Asia insurgent groups had acquired large quantities of arms and were spreading them among volunteers and mercenaries.
A mechanism was needed by which such international crimes could be stamped out. The time had come when member States needed to accept their responsibility for uprooting these menaces in the larger interests of the world community.
GULNAR WAKIM, of North-South XXI, said that the lifting of the immunity of General Pinochet in Chile was a victory for human rights, a victory for the victims and a victory for the people of the South. The discussion on mechanisms of human rights often did not cover the inequality of the power of States, even though this inequality was at the core of the debate and the source of a new form of impunity benefiting dictators and corrupt businessmen. These new economic dictators were violating the economic, social and cultural rights of people every day. The globalization of transnational economic transactions had high costs in developing countries. These social criminals were ensured that their impunity would not be affected. There were inadequate mechanism to bring these people to justice and it was a paradox to discuss a good administration of justice without speaking of the mechanisms of bringing these new dictators to justice.
EL-HADJI GUISSE, Subcommission Expert, said there was a tremendous hole into which democratic principles and human-rights protections fell in some States. The rule of law, equal protection before the law, and other standards did not, in the end, apply in these States. There might be token acceptance of such standards, but often the judiciary was weak, was not independent, or was not sufficiently supported or financed. The result was that justice was distorted. Often the separation of powers was not observed. In some countries political powers controlled the judiciary completely -- judges were totally dependent agents of ruling regimes; they were vassals. The entire careers of judges were completely controlled; hence they could not be independent; they had to accept what happened -- and a lot of dirty business occurred; promotions came not from tough and fair application of justice but from pleasing the boss. Nepotism could also play a role, and bribery. The result was arbitrary arrests, unjust convictions, improper conditions of detention, and improper application of the death penalty.
A very great country, the United States, had become a master at carrying out the death penalty, in a large number of cases against African-Americans, many of whom were under 18 when they committed their supposed crimes. The death penalty was carried out in other countries, too, although there was a laudable trend in many regions, such as Europe, away from capital punishment.
To see the extent of corruption, one had only to look at the incredible number of corruption cases where no punishment had resulted. There also was fiscal fraud and customs fraud.
Among possible ways of making progress would be establishing "universal competence" for international crimes -- meaning they could be tried anywhere; for that, a framework would have to be constructed involving all States; the point would be to combat impunity, although such an approach, if twisted, might perpetuate impunity. The International Criminal Court and the various international tribunals, as for Bosnia and Rwanda, had been set up; their jurisdictions supplemented but did not conflict with national jurisdictions, and they were based on the principle that international crimes did not lapse. Perhaps international unions of judges and magistrates, set up with the help of the International Labour Office, might serve as a way of protecting judicial standards and independence.
PAULO SERGIO PINHEIRO, Subcommission Expert, was concerned about the situation of the administration of justice in Indonesia. The Commission of Inquiry for East Timor as well as the Security Council had stated that there was an urgent need to bring the perpetrators to justice as soon as possible. Unfortunately, it seemed that international standards of justice would not prevail in Indonesia for a considerable time. A recent re-shuffle of the military had resulted in the return to power of hard liners. Reform was required to ensure an independent judiciary and the promotion of justice and human rights. Indonesia's efforts to bring military leaders to justice had not been satisfactory as military judges had been used, and the commanding officers had remained untouched. This was a step in the wrong direction and it was setting a dangerous precedent. Indonesia had to bring its justice system up to the international standards.
JASDEV SINGH RAI, of Liberation, said Indonesia had not done a satisfactory job in bringing political and military leaders responsible for political violence to justice; the Government was failing to fulfil its commitment to combat impunity made to last year's Subcommission; the wrong steps were being taken in Aceh and it was clear that only an independent international tribunal could provide justice for peace, reconciliation and stability in East Timor. Administration of justice in Yemen had failed to provide redress for serious human-rights violations, and the Subcommission should call on the Yemeni Government to start a dialogue with the National Opposition Front. In India, the much-criticized Terrorist and Disruptive Areas Act, which resulted in some 75,000 detentions, and which had been allowed to lapse, was being reinstated; a similar Act existed in Sri Lanka, resulting in such abuses as extra-judicial executions, torture, and rape. There were serious violations of the rights of Sikh activists in India at the hands of police, while some of the activities of the armed forces in Kashmir amounted to crimes against humanity.
There should be a Special Rapporteur on South Asia, as there were also problems of justice in such countries as Malaysia and in Australia. In Australia, indigenous peoples were denied sufficient legal status and resource ownership.
JAIRO SANCHEZ, of the America Association of Jurists, welcomed the decision by Chile to lift the immunity of General Pinochet. It was also pleased at the swiftness with which Argentina had acted to prevent the impunity of those responsible for kidnapping incidents. Former military heads were being detained. This proved that sometimes the fight against impunity was more observed in developing countries than in the so-called superpowers, such as the decision not to open an investigation on the actions of the North Atlantic Treaty Organization in the former Yugoslavia which ignored the systematic violations of human rights law. It was important to note that United States authorities required international criminal courts in all areas where they were themselves not involved. The independence of the tribunal for Yugoslavia was fiction as the judges obeyed the power that had appointed them. This rigid system took away any initiative of the judges and confirmed that the superpowers already had a mechanism, which they chose not to use according to international standards of human rights law.
GIANFRANCO FATTORINI, of the Movement against Racism and for Friendship Among Peoples, said fair administration of justice was vital for human rights. There were many problems around the world, such as convictions for persons expressing their rights to free expression and the totally unjustified phenomenon of the death penalty. The situation in Turkey was a matter of concern; the official attitude of the Turkish authorities had not changed; a few weeks ago, the president of a legal political party had been sentenced to one year imprisonment for unacceptable propaganda. There were a number of other distressing convictions in Turkey.
Another situation of concern was in Morocco, although over the last year there had been great improvement in the situation under the new king. Still, at a trial recently, three persons had been sentenced to up to four years in prison for breaches of State security; their expressed opinions had not in fact been criminal. There needed to be a true climate of freedom of expression, where demonstrators could carry out their activities, and where, if they were summoned to court, they were allowed to have legal representation. And many cases of disappeared persons still had to be resolved. Also, long-time Moroccan prisoner of conscience Mohamed Daddache should be freed.
JANE FRANCOISE HAMPSON, Subcommission Expert, said that international human rights mechanisms were, and should be, subsidiary. The primary obligation of States was to protect and enforce human rights through the domestic legal order. If the State provided effective domestic remedies, it was much less likely that violations would become widespread and systematic. It also made it much less likely that a country would become a target of international concern. The provision of effective domestic remedies therefore offered a considerable incentive to States. The problem therefore appeared to be one involving the practical implementation of the obligation to provide a domestic remedy. Impunity had both an internal and external dimension. The internal dimension had been discussed. The other problem concerned those allegedly responsible for gross and systematic violations of human rights, crimes against humanity or war crimes, who sought to find refuge in other States.
Ms. Hampson focused on the failures of the Government of Turkey in the south-east of the country to illustrate internal failures, such as: the inadequacy of public prosecutors to question members of the security forces and to verify documentary materials; the failure by the police or security to record evidence or make reports; the failure of public prosecutors to react to visible signs of ill-treatment; inadequate forensic medical examination of detainees and a defential or blinkered attitude by the public prosecutors towards members of the security forces. With regard to the international aspect, Ms. Hampson used the example of a mujahadeen commander known as Zardad who was alleged to have committed serious war crimes and had entered another country where he lived under an assumed name. All States whose courts did not enforce criminal law on the basis of universal jurisdiction were urged to pass the necessary legislation to enable the prosecution of persons alleged to have committed war crimes on the basis of universal jurisdiction.
PELPINA SAHUREKA, of the International Association of Democratic Lawyers, said that in the Moluccas, the Indonesian armed forces were waging a full-scale war against the Moluccan people, and more than 40,000 Moluccans had been killed. There was arbitrary detention, torture in police custody, disappearances, and extra-judicial executions; a recently imposed state of emergency simply allowed the armed forces and some 30,000 armed mercenaries -- the so-called Laskar Jihad -- to commit atrocities more easily.
There should be an international fact-finding mission to the Moluccas; there should be visits by Special Rapporteurs on torture and on arbitrary executions; there should be prosecution and punishment of political and military leaders responsible for these gross human-rights violations; there should be immediate withdrawal of the Indonesian army and its mercenaries from the south Moluccas; and there should be immediate humanitarian aid from international organizations.
YOZO YOKOTA, Subcommission Expert, presented the report of the working group on the administration of justice. The working group had worked under time constraints and yet had managed to achieve a great deal. One of the most salient points of the discussion had been the in-depth debate on the death penalty where it was noted that there were positive trends in the direction of the abolition of the death penalty. It was also cautioned that in some States, executions had increased, creating a negative trend. Secondly, the Working Group had discussed the subject of summary, arbitrary and extrajudicial executions. These practices were rampant particularly in armed conflict areas. It had been stressed that the parties to conflicts should respect international human rights law and that developed countries should stop providing weapons to armed bands engaging in such practices. Third, on the question of privatization of prisons, the working group cautioned that this practice was not limited to one country, where private companies operated the entire administration of prisons. Fourth, the improvement and efficiency of the judicial instruments for the protection of human rights at the national level and their impact at the international level had been discussed. It was stressed that there were three constitutive elements of instruments specifically created to protect fundamental rights, namely rapid proceedings, precautionary measures and fundamental restitutive measures.
Two new items had been added, the administration of justice through military tribunals and other exceptional jurisdiction where the compatibility of military tribunals and international standards were analysed. The second new item was the domestic implementation in practice of the obligation to provide effective remedies.
OLGA NAKOJO, of the International Movement against All Forms of Discrimination and Racism, said the "Sayama" case in Japan was a good illustration of lack of a fair trial. The defendant, Kazuo Ishikawa, was a member of the Burakumin minority group, and was originally sentenced to death, and in a second trial to life imprisonment, and had served 32 years in prison before being released on parole. He was now seeking a retrial, claiming his innocence. There was admission that the prosecutor in charge of the case had kept evidence from the defence, and that evidence was still unavailable to Mr. Ishikawa. The Tokyo High Court had made a decision to dismiss the claim for a new trial. The Japanese judicial system was undergoing re-examination and reform, having been increasingly attacked for being dissociated from ordinary citizens. The UN Human Rights Committee had recommended guarantees of disclosure of evidence and human-rights education for judges, but these steps had not been realized or implemented.
There was long-standing discrimination in the Japanese justice system. Minorities were often automatic suspects, meaning police investigated them and discriminatorily expected them to be guilty. Eradication of such discrimination was essential for a fair trial.
PANKAJ BHAN, of the International Institute for Peace, said that the topic under discussion was multi-faceted and wide in its scope and implications. The agents for denial of justice and human rights were the States and also some of the non-State actors who had emerged on the scene during the last few years. The denial of justice on the part of the States was manifested in two ways. First, the targeting of individuals, which could be generated by personal vendettas or by the desire to silence critics, opposition leaders or human rights activists. Second, denial of justice on a mass scale encompassing whole communities by the State. The Mohajirs in Pakistan were a good example of this practice. Since 1992, more than 15,000 Mohajirs had been extra-judicially executed and thousands had been maimed for life. It seemed that the State of Pakistan had ceased to administer justice to political opponents, democrats, human rights activists and also to entire communities demanding not secession but only autonomy under a united federal dispensation. This problem, along with the denial of a visa extension to the son of former Prime Minister Nawaz Sharif, were issues that the Subcommission was encouraged to act upon, so that recalcitrant States like Pakistan halted their human rights violations.
MOHAMMAD MUMTAZ KHAN, of the Association for the Promotion of Employment and Housing, said for some years the organization had protested the situation in the northern areas and Pakistan-occupied Kashmir, but conditions had not improved and in fact were getting worse. Unlike India, Pakistan could not claim foreign militancy as a reason for denying fundamental rights in these territories; yet violations were widespread, not limited to any particular group, and had gone on for 52 years. In fact the entire Pakistani population had been facing violations since the military had suspended the Constitution and imposed a state of emergency.
The northern areas had been under a state of emergency for a long time; the region was officially a disputed territory and part of Kashmir, but Pakistan had detached and isolated it. There was no access to justice for residents, no right to appeal, and decisions by Pakistan's own Supreme Court for restoration of fundamental rights there had not been complied with by the Government. Political activists faced treason charges and political opponents were victimized. The Subcommission should take notice of this situation.
VO VAN AI, of the International Federation of Human Rights League, was expressing concern over recent attacks by the Egyptian State on the civil society of Egypt. The arrest of the Saad El-Din Ibrahim and the shut -down of the Ibn Khaldoun Centre were cited as clear examples of the recent attempts of the Egyptian State to destroy Egypt's civil society and to limit political opposition. The repression had been clearly revealed during the last parliamentary elections, where the democracy of the State had been seriously threatened. The organization also deplored the control exercised by the political institution over the Peruvian judiciary. Court activities could no longer guarantee the independence or transparency of decisions or actions. Prison sentences were being extended beyond reason. The Federation also condemned the Peruvian decision not to take part in the inter-American human rights process; this was a clear regression for the promotion of human rights.
The Federation also raised problems concerning the administration of justice in Northern Ireland and in Viet Nam. In light of these gross and systematic violations of human rights, the Subcommission was urged to encourage States to respect the recommendations of the special rapporteurs on religious intolerance and the freedom of opinion.
DAVID LITTMAN, of the Association for World Education, said Egypt had been shackled by state of emergency legislation since 1981. On 30 June, police had arrested Saad El-Din Ibrahim, the founder and director of the Ibn Khaldoun Centre for Social and Development Studies and a leading human-rights defender -- there was no official charge, just for "investigation". Several staff members of the Centre also were arrested, documents and computers were confiscated, the centre was closed down, and another nearby group which
encouraged participation of women in elections was also closed. Following condemnation by Amnesty International of Egyptian muzzling of human-rights defenders and intense pressure from diverse sources, Mr. Ibrahim was released on bail on 10 August, still uncharged.
He was accused at various times in the past in a smear campaign by the Government-controlled media of receiving money from foreign sources to tarnish Egypt's image; was disliked for having concluded that Egypt's 1995 parliamentary elections were rigged; for having tried to establish a system to monitor forthcoming elections and to foster participation in the elections; for supporting the Copt minority; and for holding a conference in May on "Minorities in the Arab World". The Subcommission should raise its voice in every case where human-rights defenders were threatened by arbitrary detention.
SARDAR SHAUKAT ALI KASHMIRI, of the European Union of Public Relations, said that he had had to seek asylum in Switzerland on account of extreme persecution which he had personally endured. He had suffered solitary confinement and considerable mental torture. Despite his fervent appeal to the judiciary, he was kept under unlawful detention, not knowing whether he would come out of it dead or alive. It was unfortunate that some States were overtly or covertly abetting such violations of human rights, which constituted international crimes. These Governments did so with the sole purpose of achieving their political goals. The Subcommission was informed that Pakistan was a State where organizations and institutions paid scant attention to the protection of the rights of the people. Religious seminars had been set up and a variety of religious organizations had become the breeding ground for fanatics. Not only were the northern areas of Jammu and Kashmir under oppression and suppression, but the entire State was affected. The Subcommission should exercise its influence to persuade Pakistan to stop trans-border terrorism, drug-trafficking and proliferation of small arms so that the region was given a chance to stability and peace.
SARDAR TAHIR AZIZ, of the World Muslim Congress, said innumerable acts of torture, arbitrary detentions, summary executions, and extrajudicial killings committed by 700,000 Indian security forces in the disputed territory of Jammu and Kashmir amounted to one of the worst situations of impunity. Impunity had become a way of life in Kashmir, and the Indian Government did nothing to end it and in fact was committed to the imposition of a military solution in Kashmir. Although India had signed the Convention against Torture in 1997, impunity in its laws was a major contributor to cases of torture -- members of the armed forces were practically immune from prosecution under domestic legislation. Recently the Government had proposed new anti-terrorist legislation that would be a replication of the notorious TADA provisions.
The Subcommission should ask the Government of India to explain its position on the various laws enforced in Kashmir; should express its serious concerns over the proposed anti-terrorist bill; and should offer India technical assistance to bring its laws into conformity with the country's international obligations.
JULEN ARZUAGA, of the International League for the Rights and Liberation of Peoples, said that States must punish those in violation of human rights. Any amnesty clauses attempting to free offenders contradicted international human rights law. Those responsible for these crimes had to be tried by a normal court and not by military tribunals. The recent refusal to give General Pinochet impunity was an encouraging improvement, however, many laws still needed to be reformed before Chile's legal system was consistent with international law. In El Salvador, inconsistent laws still existed, the persistence of amnesty laws was the main principle on which impunity rested. Therefore, the Subcommission had to ensure that these inconsistent laws were revoked in order to achieve a real independent and transparent judiciary. In Turkey, trials against torture offenders were rare. There were difficulties in obtaining medical and forensic evidence and arbitrary legal obstruction during trials was commonplace.
DAVID WEISSBRODT, Subcommission Expert, said the Subcommission had before it a draft resolution calling on the Commission on Human Rights to give priority consideration to the draft convention the Subcommission had developed on the protection of all persons from enforced disappearances; the Commission had not devoted adequate time to the draft convention, and he hoped the Subcommission would adopt the draft resolution by consensus.
He wished to express concern about the reported disappearance of Jafa Siddiq Hamzah, Chairperson of the International Forum of Aceh, from the city of Medan, while on a human-rights mission to Aceh. He urged the Government of Indonesia to investigate fully this reported disappearance.
Detention of asylum seekers was routinely used in a number of States, particularly in North America and Western Europe, and such detention often lasted indefinitely. These policies could inhibit persons from lodging or pursuing their asylum claims, or induce them to abandon them; conditions of detention were often extremely poor; critics of these practices maintained that the detention policies could actually be designed to discourage asylum seekers from seeking refuge in certain countries.
The standards relating to detention of asylum seekers adopted by the United Nations High Commissioner for Refugees (UNHCR) in 1999 were useful and appropriate and if properly applied could significantly improve the situation. Such detentions also implicated a number of human rights standards, such as those in the 1951 Convention Relating to the Status of Refugees; the International Covenant of Civil and Political Rights; the UN Body of Principles for the protection of all persons under any form or detention or imprisonment, and the Convention against Torture.
Under UNHCR standards, detention of asylum seekers should only be used in exceptional and strictly limited circumstances, on a case-by-case basis, and under humane conditions. A number of States did not follow this policy. Alternatives to detention were available and should be considered by these States, and such States should make a good-faith effort to avoid detaining vulnerable persons such as children, torture victims, the elderly and the disabled.
MARIA-JOSEP PARES, of Pax Romana, speaking on behalf of the International Young Catholic Students and Centre-Europe-Tiers Monde, said there were clear and dangerous irregularities in the judicial system of Colombia. These concerns had long been a problem in Colombia, however, the organizations brought this issue to the attention of the Subcommission regarding the disappearance of Alirio Pedraza Becerra, a famous human rights activists. The investigation into his disappearance had been carried out in a highly irregular and unprofessional manner, and no one had been charged for the crime. There were distortions of the truth in the investigation regarding the incidents surrounding this case. This was a situation which endangered all human rights activists in Colombia. The organizations were concerned that there was a perpetuation in human rights violations in Colombia with total impunity. In addition, there was a fear for other human rights activists who were living in extremely unsafe situations. The Subcommission should not allow States to carry out this kind of oppression of human rights activists. The Subcommission was urged to guarantee the rights and integrity of human rights defenders and the Government of Colombia was called upon to reform the nature of its legal system and to end the threats against human rights activists.
RONALD BARNES, of the International Human Rights Association of American Minorities, said the Subcommission should study judicial decisions affecting every aspect of the human rights of indigenous peoples. The United States Government had recognized traditional indigenous Governments under President Monroe in 1821, but now denied such recognition at all hierarchical levels of the U.S. courts. This was discrimination. Indigenous peoples needed recognition of their sovereign rights and must have equality in the administration of justice in territories involving their traditional lands so that they could properly exercise their right to self-determination. Similarly, the intersessional working group for the elaboration of a draft declaration on the rights of indigenous peoples disregarded the sovereign equality of the indigenous peoples of Hawaii and Alaska. Colonized indigenous peoples should be notified whenever the colonizing Governments discussed any topic related to their situation, such as in the territory of Alaska.
The Subcommission should pass a resolution to examine the situation in Alaska, and a special rapporteur should investigate the juridical history and continuing discrimination against the indigenous peoples of Alaska by the United States.
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